0120092399
06-17-2010
Jesus G. Babauta,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 0120092399
Agency No. DECA-00044-2009
DECISION
Complainant filed an appeal with this Commission from the Agency's
decision dated March 23, 2009, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the
following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
In his complaint, Complainant alleged that he was subjected to
discrimination on the bases of race (Asian/Pacific Islander), color,
and in reprisal for prior protected EEO activity when:
On June 14, 2006, Complainant was removed from his position as Store
Director at the Orote Naval Station Commissary.
The agency dismissed Complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(4), for electing to pursue the claim through the Merit
Systems Protection Board (MSPB).
On appeal, Complainant requests that his case be reopened since he was
denied access to an EEO Counselor by his removal from his position,
the confiscation of his identification card and vehicle decal to enter
the Guam Naval Base, and the prearranged agreement between the Zone
Manager and the Commander, Guan Naval Base to bar him from entering the
base for six months. Complainant contends his removal was based solely
on allegations and innuendoes which he claims were unfounded and could
not be substantiated. Complainant also states his removal was done in
retaliation for his refusal to participate in the pre-selection of a
candidate for the position of Grocery Manager.
ANALYSIS AND FINDINGS
Upon review we find the Agency properly dismissed Complainant's complaint
for raising the matter in an appeal to the MSPB. A mixed case complaint
is a complaint of employment discrimination filed with a federal agency,
related to or stemming from an action that can be appealed to the
MSPB. 29 C.F.R. � 1614.302(a)(1). An aggrieved person may initially file
a mixed case complaint with an Agency or may file a mixed case appeal
directly with the MSPB, pursuant to 5 C.F.R. � 1201.151, but not both.
29 C.F.R. � 1614.302(b). 29 C.F.R. � 1614.107(a)(4) provides that
an Agency shall dismiss a complaint where complainant has raised the
matter in an appeal to the MSPB and 29 C.F.R. � 1614.302 indicates that
complainant has elected to pursue the non - EEO process. The record
shows that Complainant raised his June 14, 2006 removal with the MSPB
in 2006, prior to filing his formal EEO complaint on March 10, 2009.
In a decision issued January 11, 2007, the MPSB concluded that the
Board has jurisdiction over Complainant's removal appeal. Babauta,
Jr. v. Department of Defense, MSPB No. SF-0752-06-0750-I-1 (January
11, 2007). The MSPB affirmed the Agency's removal of Complainant. Id.
Thereafter, Complainant petitioned for review of his appeal which the
Board denied on May 8, 2007. Complainant then filed an appeal on the
matter in the U.S. Court of Appeals, Federal Circuit. On March 21,
2008, the U.S. Court of Appeals affirmed the Board's decision sustaining
Complainant's removal. Babauta, Jr. v. Department of Defense, United
States Court of Appeals for the Federal Circuit (March 21, 2008). In the
instant case, we find that Complainant elected the MSPB process and can
not now choose the EEO process for the same matter.
Accordingly, we AFFIRM the final agency decision dismissing Complainant's
complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the
request and the civil action must be filed within the time limits
as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 17, 2010
__________________
Date
2
0120092399
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092399